24. It is a rule in equity, that a trustee to sell for others, or a mortgagee with
power of sale, is not allowed to purchase, directly or indirectly, for his own
benefit, at the sale: And it matters not, in the application of the rule, that the
sale was bona fide, and for a fair price: At the instance of the cestui que trust,
or person interested within a reasonable time, a court of equity will set aside the
sale, as of course: In such a case, a re-sale ordered, the property to be set up at
the bid of the mortgagee. Imboden vs. Hunter 622.
25. Where parties to a contract for the sale of lands mutually manifest an intention
to repudiate and abandon the agreement, by a series of acts in hostility to it,
neither of them can afterwards enforce the specific performance of the con-
tract in chancery. Walworth vs. Miles 653.
The discretionary power of the court to allow amended or supplemental answers
to be filed, unless abused or exercised in violation of established rules, is not the
subject of review. Miller vs. Fraley, 735.
27. Whether the receipt upon a judgment and the entry of satisfaction upon the execu-
tion thereon, be a valuable consideration for land, or not, the payment of over two
hundred dollars in money, in addition to such receipt and satisfaction, would be a
valuable consideration; and equity will not enquire whether it is an adequate con-
sideration; at least, in favor of one who had purchased at a merely nominal price.
Ib.
28. The court can find no adjudged case nor is it laid down in the text books, that a
purchaser must hold under a general warranty deed to entitle him to protection
as an innocent purchaser without notice; but it is no doubt the law that where a
person bargains for and takes a mere quit claim deed, or deed without warranty,
it is a circumstance, if unexplained, to show that he had notice of imperfections
in the vendor's title, etc. Ib.
29. The bill charged that K., a judgment debtor, made a fraudulent arrangement with
F., by which the latter purchased the lands of the former, with his money, at
execution sale, and held them for his use and benefit, to prevent the lands from
being sold to satisfy other judgments against him, and that the defendants, sub-
sequent purchasers of F., had notice of the fraudulent arrangement; which was
positively denied by the answer; Held:
1. That in the absence of allegation and proof, as to the possession of the land, the
presumption, if indulged in, is that possession was with the legal title.
2. That to make the insolvency of the judgment debtor a circumstance from which
to infer notice of the fraud, it was necessary to prove that the defendants had
notice of the insolvency at the time of the purchase.
3. That though the acceptance of a special warranty deed may be a circumstance
from which to infer notice, it is liable to explanation-as that the defendant's
attorney, upon examination of the title, believed that a good legal title might be
made to his clients-the payment of a fair price, etc.
4. That the facts, that the negotiation for the purchase of the land was made by
K., the judgment debtor, and the entire consideration paid to him, and the deed
executed by F., are strong circumstances from which to infer notice of the frau-
dulent arrangement between the parties; but the force of these circumstances is
overcome by the positive denials of the answer, and the uncontradicted testimony
of the attorney, etc. Ib.
30. The defendant purchased lands, for R., of S. and F. & B., agreeing with S. to stand
in the place of R. if he did not ratify the purchase: R. declined to take the lands
and conveyed them to the defendant, who assumed to pay and did pay the pur-.
chase money; the defendant was a member of the firm of F. & B., though not
interested in the lands at the time of the purchase, but afterwards retired from
the firm, settling up his co-partnership business and accounting for the unpaid
installments of the purchase money. Afterwards, F. & B. became indebted to
the plaintiffs, who caused an attachment to be laid on the lands, bought them
under execution, and filed a bill against the defendant, who was in possession
of the lands, praying that his deed be canceled, and that the title be vested in
them, on the ground that the sale was a contrivance to defraud the creditors
of F. & B:
By the Court: Upon a careful examination of the allegations and proof, we find
no evidence showing that the defendant, who was not a voluntary grantee of
the lands, and who had the right to take the place of S. as against the vendors,
when he declined to take the lands, is chargeable with any fraud in the purchase
of the lands, or with being engaged in any scheme to appropriate them to him-
self without consideration, or to the disadvantage of subsequent creditors of F.
& B., or of any person. Apperson vs. Ford et al., 745.
By Mr. Justice Fairchild: A court of chancery will not interpose its assistance to
support a mere legal right, but in two classes of cases-as where a judgment
creditor being unable to make his debt by execution, seeks to subject to its pay-
ment a debt, or thing in action, or equitable right or interest, which the com-
mon law remedy cannot reach; and where his judgment, or execution, is a lien
on property covered by a fraudulent conveyance, or by a mortgage or incum-
brance which he is willing to redeem or remove.
Where a party has purchased lands under a judgment and execution, which have
been fraudulently conveyed to a third person, he may appeal to the suppletory
jurisdiction of a court of chancery, asking that the deed be pronounced fraudu-
lent, so that he may perfect his !ien by legal proceedings.
It is apparent, upon principle and authority, that a bill setting forth a legal claim
to lands of which the plaintiff is not in possession, against the claim of one in
possession, cannot be sustained, either as a bill for general relief, or as a bill to
remove a cloud from the title of the plaintiff under the quia timet jurisdiction of
a court of chancery, though it allege that the title which clouds that of the
plaintiff was a contrivance to defraud creditors
The cases of Ringgold vs. Waggoner, 14 Ark. 69; Mitchell vs. Etter, 22 Ark. 184,
and Shell vs. Martin, 19 Ark. 141, commented upon-the decrees in the first
two approved, in the latter disapproved.
See, also, Contracts, 16; Wills and Testaments, 13.
1. The theory of sales by masters in chancery is, that the court is itself the vendor,
and the commissioner or master is mere agent in executing its will. Sessions
vs. Peay 39.
2. The whole proceeding, from its incipient stage up to the final ratification of the
reported sale, and the passing of the title to the vendee, and the money to the
person entitled to it, is under the supervision and control of the court. Ib.
3. The court will confirm or reject the reported sale, or suspend its completion, as
the law and justice of the case may require. Ib.
4. If not restricted by statute, it is within the power of the chancellor to prescribe
by the decree, the time, place, terms,, and mode of sale. Ib.
5. The proper construction of sec. 16, Art. II, chap. 28, Gould's Digest, is, that when
lands are to be sold under execution, issued upon a decree of Pulaski Chancery
Court, the sale must be made at the court-house of the county in which the
lands are situated, as under executions upon judgments at law, but the statute
does not expressly, or by necessary implication, deprive the court of the discre,
tionary power, to prescribe the time, place and terms of sales made by the mas-
ter, or a commissioner, under its decrees. Ib.
6. As a general rule, however, unless good cause be shown to induce the court to di.
rect otherwise, it should order the sale to be made on the premises, or at the
court-house of the county in which the lands are situated. Ib.
7. Where lands situated in Chicot, were directed by the Chancellor to be sold at the
court-house in Pulaski county, this court must presume, in the absence of any
showing to the contrary, that the Chancellor so directed for some good and suffi-
cient cause, and will not reverse the order. Ib.
8. In such case, the designation of the newspaper in which the notice of the sale is
to be published, is left to the discretion of the Chancellor. Ib.
1. A right of possession of property depending merely upon the statute or muni-
cipal regulations of one State, will not, from comity, be recognized in another
State when the effeet will be to divest rights from its own citizens, or inflict in-
juries upon them.
Woodward vs. Roane, 523.
See Vendor and Vendee, 4.
1. On a plea of failure of consideration the defendant is, most assuredly, entitled
to an abatement for only so much as the consideration had failed. Petillo vs.
Hopson, 196.
2. A plea that the consideration of the note sued on was an improvement on, and
right to land, represented as swamp land belonging to the State, the owner of
which improvement would be entitled to a pre-emption; and that the land was
not swamp land. is not good as a plea of failure of consideration. Ferguson vs.
McCain, 210.
3. A plea of partial failure of consideration of a note given on the sale of pro-
perty, based upon misrepresentation, must deny that the representations were
according to the facts; and if unsoundness in the property sold be alleged, the
plea must show that the representations as to soundness were such as in law to
constitute a warranty, or were known to the vendor to be false, Raines vs.
Dooley, 329.
4. On a plea of failure of consideration, setting forth that on the sale of the prop
erty for which the note in suit was given, the plaintiff had represented it to be
sound, etc, and alleging that such representations were false and fraudulent, the
main fact in issue is, that the representations were made as alleged, and were
false and fraudulent; and if the defendant fail to prove the representations,
the court may well exclude all evidence as to the soundness, etc., of the prop-
erty, as being irrelevant to the issue. Taylor vs, Moore, 408.
5. To a suit upon a note the defendant pleaded, that the consideration of the note
was an agreement, signed and sealed, by the plaintiff and her testator, to sell to
the defendant their possession as occupant of certain lands, and deliver posses-
sion by a certain day, and alleging that possession had not been delivered, and
so the consideration had failed: Held, that the plea contained proper subject
matter of defence. Miller vs. Wood, 546.
6. Where the owner of an improvement on the public land sells his claim, making a
relinquishment thereof, whereby the vendee is permitted to locate it in his own
name with a land warrant, he will not be allowed to avail himself of the plea
of no consideration in a suit for the purchase money, whether the claim of the
vendor was valuable or worthless, or a right to a pre-emption or an improve-
ment. Sherrer vs. Bullock's ad., 729,
1. The qualified voters of a city having elected the mayor and other municipal
officers before the passage of the act of incorporation, it is within the constitu-
tional power of the Legislature to appoint the persons, so intended to be elected,
officers of said corporation, and to declare their acts as such legal and binding
in every respect-such action on the part of the Legislature does not violate
that provision of the constitution which prohibits the passing of ex post facto
laws, or of laws impairing the obligation of contracts. State vs. Kline, 587.
CONTRACTS AND AGREEMENTS.
1. A contract for the building of a house, which is so uncertain and indefinite in
its terms and stipulations as to be incapable of performance, imposes no obliga-
tion upon the contractor to undertake it. Lyles vs. Jackson county, 63.
2. The defendant in an action of unlawful detainer, having paid the balance of
the purchase money for the plaintiff and gone into possession under a contract
that he was to retain it free of rent until the return of the plaintiff, holds
under him, and not adversely, until the return of the plaintiff and demand of
possession; and so is not entitled to the benefit of the act of limitations, nor,
under such contract, is he entitled to retain possession of the property until the
money advanced is repaid him. Carter vs. Reagan, 74.
3. The acts of Congress to protect Indians from the payment of money on execu-
tory contracts, (Acts of 3d March, 1847, and 30th June, 1834,) do not relieve
white men from the discharge of their obligations to Indians. Rogers vs.
Duval, 77.
4. That a person was in feeble health at the time of selling land, is no cause for
rescinding the contract of sale, in the absence of proof that he was legally in-
competent, from mental imbecility, to make a valid contract. Thompson vs.
5. Partial loss of memory, one of the infirmities incident to advanced age, does
not render a person incapable of making contracts, while his other faculties
remain unimpared. Ib.
6. A sale of a horse, with the understanding that the purchaser was to pay for
it when he should receive his money for his wages, which would be due at Christ-
mas, and that he could not pay for the horse until his employer paid him: Held,
to be a sale on credit until Christmas, and not dependent upon the employer's
paying the purchaser his wages. Webber vs. Pankey, 205.
7. Where the owners of a boat make a contract for freight, there is an implied
contract that the boat is sea-worthy; and in an action for breaking such con-
tract, it is incumbent on the plaintiffs to prove that at the time when the con-
tract was to be performed, the boat was still sea-worthy and capable of per-
forming it. McClintock vs. Lary, 215.
8. Where it is in proof that the defendants had purchased of the plaintiff a
quantity of corn to be delivered at a future day on the bank of the river, and
that the plaintiff had so delivered it in good condition, and informed the defen-
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